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Legitimate Expectation Comparison Notes

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Legitimate Expectations Comparison — Schonberg Generally

UK legitimate expectations ≈ EU legitimate expectations o Narrow conception of objectively reasonable expectations o Deference to administration's balancing of publicindividual interests In all 3 systems, very little protection for ultra vires representations o In EU & France, reasonable protection for ultra vires {4} decisions but none for {1-3} representations o In UK, essentially similar protections for decisions & representations, but very weak French system doesn't have doctrine of LE but fills with equality, damages, and other doctrines o But patchwork of doctrines still produces unfairness o Seems like resistance to 'balancing' or discretionary approaches by the court — but given searching review of fact & law, seems unjustified

Suggestions for reform
—lawful representations
 UK — replace Wednesbury unreasonableness with proportionality approach to determining whether has been abuse of power o Raises some issues with parliamentary sovereignty in UK
 Also argument from judicial competence — judges in UK recruited from the bar instead of from civil servants in France
— not as well placed to make policy determinations?
 BUT civil servants aren't elected either — at least judges have some democratic legitimacy via appointment o Coughlan approach of balancing is more suitable than proportionality (requires identification of suitability, necessity & overall balance)
—ultra vires representations
 Representations shouldn't be disregarded simply because ultra vires o IE legality is countervailed by other considerations o Balancing approach of EU re ultra vires decisions could be more broadly applied
 Consider utilisation of damages as in France as alternative UK Historical context of deference
 Constitutional source of deference — parliamentary sovereignty
 Representations {1}-{3} historically governed by various principles: estoppel, Wednesbury unreasonableness, abuse of process, and now legitimate expectations (substantive and then procedural)

o Only relatively recently that debate resolved on whether LE has a place, whether extends to substantive LEs, and if so whether substantive LE is independent from or just a head of unreasonableness Traditionally characterised by level of deference to administrative administration o Not for the courts to balance policy o Manifestations
 Narrow — LE just a head of W unreasonableness —
Hargreaves (change in prisoners release policy)
 Less narrow — will only interfere if disappointing expectation amounts to abuse of power — Preston (IRC resiling from interest relief deal = abuse of power) Only post-Coughlan that willing to take broader view o Hamble Fisheries rejected as 'heresy' in Hargreaves; but Hargreaves distinguished in Coughlan as general shift in policy Still manifested in reluctance to venture into {4} general shifts in policy

Other means of solving problem
 Abuse of process — criminal prosecution may be rejected if clearly unfair eg because of delay or if prosecution represented that would not proceed o Dean (youth treated as witness, assured would not be prosecuted, assisted police — then prosecuted  abuse of process) France
{4} Decisions {1-3} Representations
 Decision = acte administrative — binding subject to principle of intangibilité
o Binding if lawful & constitutive of rights (créatrice de droits) o If unlawful & constitutive, binding once 2-month time-limit passes
 Representation = faits juridiques (legally relevant facts) o Administration may have to compensate loss, but not obliged to honour representations o Similar justification to UK — flexibility of executive & legality of government: Compagnie franco-algérienne o EG Bouveret (quit job in reliance on representation of employment 
liable to damages but not binding)
 Doctrine of LE directly rejected — Rouquette (1999) o Creative inferior TAs had attempted but stamped out by CE
 Subject to general principle of equal treatment (égalité de traitement) o Applies mainly to {2} departure from policy in particular case Contextual reasons for rejecting LE
 Freedom of administration deeply embedded — recognised itself as a principe generaux — LE would be inconsistent
 French public law prefers defined rules o Akin to codification o In relation to {4} injustice created by ultra vires rule restricted by time limit rather than discretionary balancing

o Courts don't give long reasoned judgments that lend themselves to balancing factors Other methods of compensating for lack of LEs o Statutory provisions in tax & planning o Generous principles of administrative liability to damages (notably absent in UK context) — individuals will be compensated so don't need to enforce LE French droit administratif = independently developed by courts o Unusual for France o Resistant to external influence by EU/UK

Rejection of doctrine of confiance légitime
 Principle recognised by TA Strasbourg in Entreprise Transports Freymuth (1994) o F imported refuse from Germany o 1975 law provided for prohibition of refuse by agreement between States o 1990 regulation introduced need for authorisation for import - but did not prohibit any particular category o F obtained authorisation o 1992 regulation prohibited importation of certain categories of refuse
 Exception allowed importation provided there was a scheme for sale & disposal, but no such scheme in place at the time o F claimed loss of 1/3 of profits & sought damages HELD o TA — Breach of legitimate expectation - that 1990 regulation would not be suddenly changed with immediate effect & without transitional provisions o Nancy CAA — did not "destroy any hope" or any "promise" but merely ended danger to environment for reasons of public interest —
but didn't disavow principle in whole
 Stamped out by CE in Rouquette (1999) (social security change — LE arose only if implementing EU law — no reference to such a principle in French law) Other cases addressing same problem
 Administrative bodies confined by own policies: Societe Michel Faure (agency said would only take certain measures in consultation with committee
 acting illegally if without consultation) o = Yabbicon v King (UK, 1899) o Cf. Ville de Limoges (Planning authority may permit derogations from its development plan on a balance of competing interests)
 Administrative bodies bound to respect individual rights created by previous decisions: Credit Foncier o Even if those decisions illegal at the time, if they have later become immune from attack o Similar to legitimate expectation?

EU Conceptually simpler
 Established principles of o Legitimate expectation
 Developed in cases of actual decision
 Extended to representations in Chatillon (1966) (High Authority denied right to make deductions for ferrous scrap —
argued delegated decision had been made that material was scrap & later revoked  no formal decision because delegated body no longer had power — but could still derive some guarantees — but not made out on the facts) o Equal treatment o Irrevocability of {4} individualised & finalised decisions
 Content of LE doctrine o Whether expectation objectively reasonable — Nature of representations, individual's knowledge, regulatory context o Balance policy reasons against harm to determine whether 'legitimate'
 BUT generally courts do not substitute judgment as to balancing harmpolicy o Consequences is that rarely upheld in practice o makes narrower than UK principle, like old deferential approach
 Institutional context — reasons for not substituting judgment for its institutions?
 EU not a State

{1} General shift in policy

Administration mustn't be forced to stagnate BUT sudden changes can offend LE — argument for regulating manner of change o Transitional provisions o Advance warning

UK — doubtful whether LE can arise
 Some statements of principle suggesting that there must be 'adequate & clear advance notification'
 BUT in practice difficult to establish o Hargreaves (policy on prisoner's leave varied) — pre-Coughlan but distinguished in that case on that basis, so reaffirms position
 Sedley LJ in justifying existence of LE doctrine — won't stagnate administration because no individual can have LE that administration will stagnate for them
 More or less ruled out by Niazi France — no remedy Principle of mutabilité
 Administration has absolute power to change policy o
 Syndicat national de la meunerie a siegle (prices for rye fixed in 1947, said would apply til 1952 — less favourable policy adopted in 1950 — producers had relied on policy  irrelevant, can change freely — no remedy) o Query whether this is good principle
 Focus on rights — no substantive legitimate expectation falling short of right
— must show that policy has created a right Principle of "legal certainty"
 Principle of legal certainty: KPMG (2006) (CE invalidating whole code regulating company auditors — ethics code affecting certain contractual obligations — no transitional provision  illegal — annulled) o Part of a shift to be more receptive to comparative law arguments EU

CNTA (regulation provided for payment of compensation on exports — C obtained export permit  C had LE that would not change policy & abolish compensation) Even where LE arises from combination of policies o Mulder (problem with overproduction of milk — Under Common Agricultural Policy, M stopped sales for 5 years and obtained premiums — during that time, quotas changed to be function of previous years — meant M's quota was 0  LE not to be excluded from own profession as a result of acceding to policy)

BUT subject to same restrictions as below o Cannot be foreseeable — and much expected of traders in anticipating regulatory change o Still harsh approach taken to balancing publicindividual interests

{2} Departure from policy in individual case Dual rationale — legitimate expectations & equality
 It is the equality aspect that differentiates this from {1} general shift in policy
— so illogical that UK bases solely on LE but makes distinction {1}{2}
UK & EU — Policy (possibly binding) Rules (binding)
 Policy can become legally binding rule if sufficiently detailed & specific —
based on executive prerogative rather than supported by legislation o UK — Schofield (criminal injuries compensation 'scheme' = rules, not simply policy o EU — CIRFS (Commission issued detailed 'discipline' on state aid to synthetic fibres industry — approved French aid even though contrary to 'discipline'  'discipline' = rules not policy — binding) Departure from policy
 UK — based (mainly) on LE o Gangadeen (criteria for deportation of foreigners with children) o Presume that Coughlan will be extended to this category of case
 France — based on equality o Crédit fonder de France (1970) (once directive on housing grants laid down, equal treatment requires no derogation absent overriding public interest) o BUT high level of deference — no other decision has followed since 1970
 EU — draws from French law o Louwage (staff remuneration policy — but Commission refused 2 employees certain allowances  even where internal directive not a rule, equality requires adherence)
 In common o If doesn't follow, must give a reason — in error if simply disregarded o If follows, must properly construe — although some level of deference to authority Matters falling short of policy
 France — directives circulaires o Policy includes directives (guidelines & criteria for exercise of discretion) o but not circulaires (interpretations of legislative provisions) o Elusive distinction — label of documents ambiguous & not determinative in any event o Constitutional basis — Ministers have power to make rules on specific areas but not others — to make circulaires quasi-binding would effectively confer this power
 Published internal o France — formal requirement that be published in Journal Officiel o UK & EU — cannot give LE unless knowable o Problem — doesn't promote open government — potentially can withhold policies & act in arbitrary way

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